Randy Barnett: Straussian Anarchist?
Sep 07, 06 | 8:27 pm by John T. KennedyI’m tired of watching people claim Randy Barnett has answered or refuted Spooner’s arguments against constitutional legitimacy when I don’t see that Barnett has made a micron of progress against the fundamental arguments of the mature Spooner. I made my case most concisely here.
The following is the full text of a post that Micha Ghertner blogged at Catallarchy about 13 months ago. The post quickly vanished from the site but I happened to have it in an open browser window and I saved it.
Use of the “A” Word by Micha Ghertner
Randy Barnett just finished giving a talk to the Cato interns. During the question and answer period, I asked the following:
People like David Friedman have no qualms using the “A” word. You do. You couch it in terms like “polycentric legal order,” when what you really mean is anarchy. Do you do this so as not to scare the children? What’s the point in doing so when anyone who reads your book can easily figure out what you stand for?
Some argue that by making your position explicit, you will turn off much of your potential audience, who reflexively dismiss the anarchist position as absurd. On the other hand, until respected legal thinkers such as yourself carry the anarchist torch proudly, people will continue to associate the word “anarchist” with bomb-throwing wackos.
Barnett’s answer was pragmatic: he said he wants to get a bit more done as a professional academic before he risks his reputation. He stressed the importance of being honest - the term “polycentric legal order” does accurately describe his position, though it doesn’t describe it in the clearest way possible.
Interestingly, Barnett noted that it is not the case that anyone who reads his book can easily figure out what he stands for. Sandy Levinson recognized his anarchist underpinnings; the rest of the participants had not made the connection. Following this, Barnett made a sort of Straussian argument: by using the term “polycentric legal order” instead of “anarchy, “he can communicate with the radical libertarians who are “in the know” on one level, and with everyone else who still believes he is a fine, upstanding citizen on another.
While I can’t fault Barnett for being pragmatic about his career, I don’t think I’d be able to live two lives, so to speak. First, I think it’s important to challenge the popular misconception that no right-thinking person would ever oppose government in its entirety. And to do that, public intellectuals who happen to be anarchists need to be as open as possible about their beliefs. Second, and perhaps more importantly, actually engaging in the semantic debate is vital if we want to get people thinking about markets and states, exit and voice.
To put it bluntly, the libertarian critics of the word fear that when normal people hear it, they will immediately associate anarchy with chaos. And they should! Because that is what they have been taught. The government is the source of all regulation, and thus, the source
of all order. Right?When anti-market fundamentalists whine about “unfettered capitalism” and the “unregulated market,” what are they trying to say? They are telling us that under laissez faire, there will be nothing to stop the powerful from exploiting the weak, the rich oppressing the poor, and so forth. They see only electoral voting as a mechanism of regulation. They see only voice. They do not see exit. They do not see market competition as a mechanism of regulation.
There is no such thing as an unregulated free market. All markets are regulated. The absence of electoral voice - the absence of the state - does not imply chaos. It implies order by exit, by competition - unplanned and spontaneous. A Catallarchy. In order to get people to think about alternative forms of regulation apart from voice, we need to have this debate. And the best way to spark that debate is to wear the anarchist label proudly.
[Emphasis added - jtk]
Those who seek to understand what Barnett is really saying ought to be aware that he is apparently intentionally obscure about his true position.
September 7th, 2006 at Sep 07, 06 | 10:13 pm
… Quickly realize that Barnett’s “refutation” of Spooner is no such instrument as it has been widely presumed to be, but by blatant obfuscations and deliberate misrepresentations, has become a different thing altogether.
September 8th, 2006 at Sep 08, 06 | 10:09 am
Wow, two recent posts here I do not completely disagree with–first Lopez, of all people ( http://tinyurl.com/ezphh ) , and now this. Re Barnett’s use of polycentric etc., I noted this in my review of a previous book by him, here: http://tinyurl.com/fnk8p . See e.g. criticism of his use of “polycentric” on p. 66; and also other terms on pp. 67-68.
I’m not a Randian any more but you gotta like this quote: “The title of this book [The Virtue of Selfishness] may evoke the kind of question that I hear once in a while: “Why do you use the word ‘selfishness’ to denote virtuous qualities of character, when that word antagonizes so many people to whom it does not mean the things that you mean?” To those who ask it, my answer is: “For the reason that makes you afraid of it.””
That said, if Barnett has a strategic reason for his “softer” terms, I can appreciate that (though in my view, once you achieve tenure at a major law school, the time has come to take the gloves off); and I want to reiterate I respect and admire Barnett’s scholarship (though I don’t agree with his optimism about the Constitution nor his more “centralist” 14th amendment views — http://tinyurl.com/g7xt7 ).
September 8th, 2006 at Sep 08, 06 | 10:55 am
From Kim du Toit’s comment thread:
Communist and socialist agenda or any guise thereof (or any form of violent sedition AND/OR suggestion of overthrowing/replacing our system of government or refusal to abide by Constitutional laws) will not be allowed or tolerated.
Actually, if you attempt to register, the Terms of Service you are presented don’t say that at all. They do say Ideology: Communist and socialist agenda or any guise thereof will not be allowed or tolerated, so I don’t know where Tech Support got that parenthetical note. On the other hand, the TOS does say: Also, kindly refrain from posting any statement which may be construed as seditious by the Government.
I suppose that preemptively limits my participation over there. I wonder how many commenters discussing SHTF/RKBA-violation scenarios have strayed across that line. It is certainly ironic that Tech Support reminded people to adhere to TOS that require users to refrain from seditious conduct in a thread created by Mr. du Toit that explicitly calls for the undermining of established (legislative-, executive-, and court-approved!) legal order.
September 8th, 2006 at Sep 08, 06 | 4:57 pm
There is at least one alternate reason for people like Barnett to state their case in less horse-frightening terms, which is that it can be clearer to paraphrase something in a different way. I’ve seen at least one fairly prominent anti-anarchist Objectivist (Robert Bidinotto) respond positively to Barnett’s presentation of his views on “polycentric law” instead of screaming “Anarchy?!? No, not that!”
As for Barnett’s alleged justification for the Constitution, he doesn’t claim to have “overcome” Spooner’s objection; he just understands Spooner’s constitutional theory better than most of those who’ve only read “No Treason.” Both Barnett and Spooner rightly point out that no consent is required to enforce justice upon those who commit injustice.
The consent of the governed only applies to those who are to be governed before they have committed any injustice. In theory, if there were a dictatorship that did nothing but enforce justice so well that no one could improve upon it, then it wouldn’t matter whether that dictatorship had the consent of those it governed or not. It is precisely the impossibility of realizing this theoretical ideal in reality and the need for massively parallel ongoing re-evaluation of the justice-enforcement of any given political system that makes the consent of the governed necessary.
September 8th, 2006 at Sep 08, 06 | 5:33 pm
Barnett knows day job wouldn’t be endangered but the TV gigs listed prominently on randybarnett.com might not flow as freely to an openly professed anarchist.
September 8th, 2006 at Sep 08, 06 | 5:53 pm
Tim,
Conservatives and minarchists cite Barnett’s work as a refutation of anarchy so if clarity is the goal it’s not being achieved.
And Barnett told Micha that he’s not trying to be clear anyway.
September 8th, 2006 at Sep 08, 06 | 10:54 pm
If Barnett is a practicing lawyer and an officer of the court is he legally constrained from saying things like: “There is no moral obligation to obey unjust laws”? Might he be disciplined or disbarred for saying something along those lines?
September 9th, 2006 at Sep 09, 06 | 6:59 am
As part of the lawyerly oath, lawyers are required to swear to uphold and preserve the Constitution of the United States and the state in which they are sworn. In practice, though, I doubt he’s in much trouble for being an anarchist.
I think the best explanation for his opaqueness is that “anarchy” scares the horses, and his ideas will be treated more fairly without the A word. Frankly, if more people come to accept it, I don’t care if they call it dancing monkey sex.
September 9th, 2006 at Sep 09, 06 | 11:24 am
Holmes,
I have to concede that Barnett won’t face too much hostility if nobody can figure out what the fuck he’s really saying.
September 11th, 2006 at Sep 11, 06 | 4:25 pm
I’ve not seen anyone cite Barnett’s “Restoring the Lost Constutition” as a refutation of “No Treason,” but it wouldn’t surprise me if minarchists and conservatives did so. They’ve certainly said plenty of other false things in the attempt to rationalize their fetishized coercive monopoly of coercion. But their misinterpretation of Barnett’s work should not be taken to be an accurate description of it.
September 11th, 2006 at Sep 11, 06 | 7:09 pm
Lopez cited Barnett saying his book answers Spooner’s argument against the legitimacy of the Constitution.
His answer cannot simply be that agencies are free to do anything which does not violate rights, since Spooner himself asserts this. He must answer Spooner’s observation that law congruent with natural rights, law that requires men to do what morality requires them to do or forbids them to do what morality forbids them to do is nothing but empty wind. Else what has been answered?
September 16th, 2006 at Sep 16, 06 | 3:10 pm
Starr,
Criticism of Barnett’s work should of course focus on the position advocated, not a misunderstanding of the position. But if Barnett tells us that he is deliberately obscuring or downplaying his real position in some forums, then he does bear some of the responsibility for misunderstandings of his work, even if he makes his position more clear in other forums. Particularly when Barnett knows that large portions of the intended audience of his book aren’t familiar with those other forums.
Kennedy,
Note that in his exchange in JLS 19.4, Barnett also more or less stated openly that he knowingly obscured his anarchism out of considerations of audience:
I do wonder why he thinks it wouldn’t matter to his “general audience” (including the general run of Con Law scholars) whether he is defending (1) the legitimacy of the “lost” Constitution as one legal system among many in an anarchistic social order, or rather (2) the legitimacy of the “lost” Constitution as the basis for a monopoly State. In any case, it should hardly be surprising that the many, who do not read JLS, misunderstand his point.
September 16th, 2006 at Sep 16, 06 | 5:35 pm
“So when Mr. Huebert observes that I “do not address how a government may legitimately have a monopoly on the use of force and the provision of defense” (p. 105), he reveals his misunderstanding of both my project and my argument. It should not be clear that I do not address this question because I continue to deny that “government may legitimately have such a monopoly,” although I would now substitute the word “justly” in place of “legitimately” in this particular context..”
The form there is striking:
H observes that I do not address how G can be L given M.
Thus H misunderstands that I continue to deny that G can be L given M although I substitute J for L (and define J and L as different).
The bait and switch there is not especially deft.
Given the form of Barnett’s response Huebert is clearly correct.
September 17th, 2006 at Sep 17, 06 | 10:29 pm
Starr, of course, is the Sandefurian-Palmerian type of lowlife that scuttles to accusations of racism, bigotry, neo-confederacy (?), pro-slavery (?? –yeah, that’s why we’re libertarians, we want to revise slavery, you putz!) as a standard recourse to those he disagrees with. What a lowlife.
Starr is also the one who tried to correct me on a recent list (LibertarianForum) and tell me Bork is an advocate of the “original intent” theory of interpretation of the Constitution, which, Starr kindly pointed and condenscendingly (and ignoranatly) pointed out, is different than the “original meaning” view of Barnett and Spooner. Why, golly, you don’t say, there, Clem! Original intent is different than original meaning? Why, how brilliant to be able to make this distinction. (I pointed out in the comments to this thread that Bork is also one of the advocates of the “original meaning” or “original understanding” theory of constitutional interpretation, contra fork-tongued Starr.)
November 6th, 2006 at Nov 06, 06 | 12:25 am
In personal communication with Prof. Barnett, he mentioned his belief that Restoring was written as an elaboration and modification on Spooner’s constitutional theory, and not as a refutation or rejection. Barnett said that he believes that if Spooner were alive today, Spooner would largely agree with his argument in Restoring.
I’m probably not the best personal to elaborate on this as I have not yet finished reading the book, but I asked John Hasnas essentially the same question - i.e. what value does Barnett see in a Constitution that does nothing more and nothing less than what natural rights already require. I didn’t really understand Hasnas’s explanation of Barnett’s argument then and I still don’t understand it now, but it had something to do with the social or cultural value created through the public explication of a written Constitution.
November 6th, 2006 at Nov 06, 06 | 1:51 pm
Micha,
You don’t need to read the whole book to follow this. Barnett really only takes on Spooner on pages 49-52 (and only implicitly, inexplicably he fails to mention Spooner).
It’s tissue-thin. Barnett makes no headway at all and Spooner’s points stand completely intact, rendering the the remainder of the book, Barnett’s whole project, completely moot.
November 7th, 2006 at Nov 07, 06 | 8:29 pm
Micha,
That’s fine, but as I blogged Barnett states that his book is an “answer” to Spooner. Even assuming that the implications of “answering a challenge” are different than offering a refutation, it’s still downright bizarre that Barnett never quotes or references Spooner’s No Treason.
If you were elaborating on or modifying an argument of David Friedman’s, let’s say, you’d quote and/or reference the work extensively, pointing out just how and where Friedman was right and then adding whatever it was you judged he missed. Barnett’s treatment of Spooner is more akin to you making a reference to Machinery of Freedom by saying how much it inspired you, and then making a two hundred page argument for state controlled central planning.